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Cross-Examining by Body Language and Tone of Voice

While I warned in a previous post that many witnesses are liars, a more common type of false testimony is overstatement and exaggeration. This sort of "minor" falsification is characteristic of the sort of casual, inexact way of speaking that all of us regularly use in our everyday lives. It's a way of speaking, however, that doesn't translate well when used in a deposition or the courtroom.

Ex: "Before this car accident, I never suffered any medical problems in my entire life."Ex: "It's impossible to find backups of last year's emails."

For a lawyer wishing to confront exaggeration and overstatement, it's sometimes hard to know how to respond. You can't simply say, "I don't believe you. Please give me the real answer." But you can do something very close. Or, at least, some experienced lawyers can. The trick has everything to do with body language and tone of voice. I know because I've been on the receiving end of such treatment. Even when it's damaged my own witnesses, however, I've always admired the ability of the lawyers who were old and wise enough to pull it off.

How do they do it? It's a matter of demonstrating a complete lack of faith in the witness's answer by, perhaps, raising the eyebrows in a mock expression of disbelief. Then the lawyer repeats the witnesses' last answer but gives it a special spin. "Mr. Smith, do you really mean to tell me that . . . " or "Doctor, certainly you can't mean that . . . ." or "Mr. Jones, I'm certain I didn't understand you correctly. You mean to tell me that . . . " A simpler alternative is to omit the preamble and simply repeat the witness's answer with the prerequisite disbelieving expression and tone of voice. "Smoking isn't associated with lung cancer?"

The approach can also be accomplished in a light-hearted manner. I'll never forget the time an opposing lawyer caused one of my experts to become completely unglued at a deposition simply by chuckling at his answers and repeating the phrase, "C'mon doctor, it's just can't be the case that . . . "

Some witnesses would have become defensive and dug in their heels at questions like these, but this witness was especially susceptible to the mocking approach. It's an approach I try to keep in mind when I'm doing my own depositions. In my notes, I call it the "c'mon doctor" approach. Although experts seems more susceptible to this treatment than fact witnesses--perhaps because experts are more concerned about how other professionals are assessing their credibility--the approach can work on all types of witnesses, assuming they're actually engaging in exaggeration or overstatement.

"Oh, c'mon, Mr. Witness. No medical problems in your entire life? Is that what you really mean to say?"

Of course, questions like these can often be objectionable. They start to become argumentative pretty quickly, for example. But it's easy to simply restate the question after the other side objects. Let the witness answer subject to the objection, then back up a step. This time the witness will know you're on to him. "I'm going to ask my question again. What medical problems did you have before the accident?"

Although it's not always an easy technique to pull off, the method described in this post can be a very effective way of coping with exaggeration and overstatement by certain witnesses.